Wednesday, April 11, 2012

We may know as early as Monday, April 16, 2012 whether the U.S. Supreme Court will review the Court of Appeal's decision in Brown v. Ralphs Grocery Co., 197 Cal.App.4th 489 (2011). The Court in Brown refused to compel arbitration of plaintiff's PAGA claim, notwithstanding Concepcion.

A cert. petition was filed in January 2012, after the California Supreme Court denied review. Now, the case has been distributed for conference on Friday, April 13, 2012. Ralphs Grocery Co. v. Brown, no. 11-800. The conference results are normally announced the following Monday, although it's always possible a case will be relisted.

I have reviewed the opposition to the cert. petition (pulled from Lexis) and it is very well done.

Two more cert. petitions of interest now pending in the U.S. Supreme Court:

Ticketmaster et al. v. Stearns, no. 11-983. The cert. petition was filed in February, and the case has been distributed for confernce on April 20, 2012. The defendant is attempting to obtain review of Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011), in which the Ninth Circuit reversed an order denying class certification of a UCL "fraudulent" prong claim. The cert. petition claims a split in authority between Stearns and Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023 (8th Cir. 2010) on the issue of whether Article III standing must be established for all unnamed class members in federal-court actions. (Frankly, I don't see it. If you read Stearns carefully it says that such a requirement, if there is one, was satisfied.)

Comcast Corp. v. Behrend, no. 11-864. The cert. petition was filed in January 2012 and plaintiffs elected not to file a reponse. After the case was distributed for conference, the Court ordered a response filed by April 9. The defendant is attempting to obtain review of Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011), in which the Third Circuit affirmed class certification in an antitrust case, holding: "The factual and legal underpinnings of Wal-Mart—which involved a massive discrimination class action and different sections of Rule 23—are clearly distinct from those of this case. Wal-Mart therefore neither guides nor governs the dispute before us."